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San Francisco, CA, USA

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Mr. Gruberg 6, Sfmta 3, Lazarus 3, Hwang 3, Us 2, Hurtado 2, Mrs. Gallagher 2, Fung 2, San Francisco 1, United Taxi 1, Gruberg Or Sfmta 1, Brad 1, Mta 1, City 1, Recreation & Park 1, Washington 1, Shannon Gallagher 1, Matthew Girardi 1, Shannon 1, Gallagher 1,
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  SFGTV    [untitled]  

    November 2, 2012
    5:00 - 5:30pm PDT  

want to make? >> excuse me? >> is this the comment you want to make? and i will allow the department to have extra time and answer. please wrap it up. >> their pretension that this is not the grant or denial of a permit. is a total lose. there is no other proceeding that these permits are issued. it's a staff decision to give those permits to certain companies. and they have gone out. there is nothing else to appeal except that decision. and is the -- and the other point i want to make is the e -- illusion of a letter and i haven't seen that letter and
this is a sunshine violation of our not receiving it. i have no idea what that letter says and i can't respond to it. and our rights on the this hearing are compromised on that account. >> vice president fung, i want make a note that director has approached me and i met with the possibility of the board entering into a memorandum of understanding with mta. that we hear appeals of individual permits that are granted, suspended and revoked. i wanted you all to understand that and for the members of the audience to know that discussion is ongoing. and we expect that to come before the board before the close of the year. >> it doesn't cure the fact we never got the letter. >> the letter was in our packet. we will deal with that. you want to respond to my
question and i will allow you equal time to mr. gruberg. >> i wanted to clarify the point that executive goldstein made, that we are anticipating our board and hearing and hope finalize the memorandum of understanding for the review of individual permit decisions. we hope to finalize that and take it to the board for the november meeting. we asked for the department of transportation to hold off for the provision in the transportation code. that was the legislative change that mark gruberg was eluding to. but it's been clearly stated by the board that don't want the board of supervisors to take action until we have this memorandum of understanding of
process. >> commissioners unless you have other questions. the matter is submitted. and mr. gruberg, i am happy to give you my copy of that letter. >> commissioners? >> well, i think i would like mr. gruberg to have an opportunity to review the letter. if he hasn't seen it. and make any comments. if he would like to. >> okay, the letter didn't say that much. >> i would have comments about that letter myself. >> i believe that mr. gruberg
represents your side of the issues. >> he doesn't represent the united taxi driver members, i am a member of the public and have things to say. >> let him have a chance. >> we will determine that sir, whether there will be further public testimony. >> that letter was available in the board's office in our files. if you came to the office and looked at our files, you had an opportunity to see it. >> if that's not the most outrageous thing i have heard, i don't know what is. sorry, i don't come down there everyday.
>> any comments, mr. gruberg? >> yes, i wish to comment that this letter needed to be served upon us so that we had an opportunity to read it. and to contemplate its contents and to discuss it. and this is a sunshine violation. and the public itself had that same right and to say it was available in the office when no one knew it was written. mr. (inaudible) that is making those comments is someone i talk to. and if i had said, brad, run yourself over to the board of appeals office. because there is an interesting letter you might like to read,
or maybe i could furnish a copy of that. i would say that the conduct of this hearing is not in accord with the law. and i hope you can cure that by granting us a right of appeal. and you have heard ample comments. >> we can cure it by continuing this case. >> yes, it was not the board of appeals to provide that letter. it was something that the sfmta was responsible for. i wanted to make that clear. >> in one case or another there is a violation there. i am not asking for a continuance because this is the utmost of important. i would like a resolution tonight. but i want to note for the record this is not proper procedure.
>> do we have a copy of that letter? >> in your file that he was not going to submit a brief and submit to the city attorney. >> do you have any further comment than what you said, you would like us to resolve the issue today and you believe this is a sunshine violation. >> that's correct. >> thank you. >> commissioners. >> is it submitted? >> yes. >> okay. well, i -- i am an attorney. and i definitely come from the perspective of someone who believes in the democratic principle of due process. that many of the speakers tonight have spoken about. and i believe that principle in our legal system is essential in order for it to be viewed as a system that is legitimate.
and a system that we can respect and abide by. i bring this as an overarching way of looking at this issue. and that is the way i am approaching the interpretation of the codes, statutes and all the propositions that have been cited in the city attorney's memorandum. so as an attorney that have been practicing for over 15 years, and defending the constitutional right of due process. i respectfully disagree with the city's attorney interpretation of the codes and the statutes. and i will explain in detail why i believe that. first and foremost, i believe that section 4.106 "b" of the charter does empower the board of appeals to hear an appeal
from the denial of this type of permit. the reason i believe that, because i agree that the issuance of medallions is an unlawful denial of the permits to persons on the waiting list. second of all. let me just finish please -- second of all, it does empower, the charter does empower the board of appeals to hear this appeal. to interpret it otherwise would mean there is no appeal right for this type of denial. to me which is a violation of due process. in addition i do not believe that the police code is superseded by the transportation code or by subsequent charter amendments either. and finally in regard to proposition "e" and "a," i do
not interpret those meaning there is no process for abuse or d discretion on this action by the sfmta and i grant case and hear this appeal. >> thank you. [applause] >> quiet in the room. >> well, i am not an attorney. but i will -- i think i have done this more and more is get into some historical perspective. the first time i sat on the board of appeals at that time, permit of appeals, which was in the mid-80s. the issue of medallions first came up towards the tail end of my tenure. did not see any conclusions that
went into additional generations following that. the reason i bring that up is because that the point of time the board of appeals there were very few restrictions both the charter revisions and the legislative revisions that is had occurred from our original charter on the powers of the board of appeals. we all know that subsequent to that there is a chipping away at it. two majors times that occurred, one was in the 90s when the charter was revised extensively. there are two departments that do not hear appeals from the
board. that was due to charge :-changes in the charter. and specific to the changes at that time the valid arguments both pro and con, specifically mentioned the elimination of board of appeals authorization with those two departments. then subsequently there was another chipping at the type of cases this board would hear. and this was related to conditional uses. and that happened also, and i remember specifically it's mentioning within the valid argument that one was being taken away from one agency. and something was given to another agency. which in that case was the board of supervisors. when i looked at the valid argument here, i did not see
anything specific in it. when i looked at the arguments that were made on certain language. and i think certain words actually. one term meaning exclusive. and the other related to is the purview of this board only a single permit. whether it's a plural or not. i am not sure i buy either one of those. at this point from a non-legal lawyer perspective, i am sensing that i don't see that the actions in the creation of the mta and the subsequent absorbing of the taxi commission did not specifically preclude appeals to this body. and i would so vote that way.
>> i think i would like to hear more from our deputy city attorney. because there have been statements made that clearly disagree with your opinion. so if you care to expand a bit on some of the challenges to your conclusions. >> well, certainly, commissioner. i would start from the premise that the board of appeals has the authority that grant by city law. it doesn't have the authority to expand its jurisdiction beyond what city law has granted to it. and what has happened is a change to city law. and the port and park are examples of exclusive jurisdiction and therefore have been carved out. what is happening here is a similar expansion of the jurisdiction of sfmta following
with proposition k and proposition a in 2007. given sfmta exclusive jurisdiction of taxi related functions. and no way not to define as issue of permits. and you reviewing appeal of the permits and step in the shoes of the sfmta that has been transferred to sfmta. portion b gives this body the jurisdiction to listen to the appeals of granting and denial of individual permits. this is not, the resolution that is before this board on the jurisdiction request is not the issuance of individual permits. it's the issuance of a number of permits based on the sfmta finding of public interest and
others. it's a legislative act and it's setting the rules for the operation of taxis in the city. this body does not have jurisdiction of legislative actions. it's a quasi-judicial body, that means it makes decision based on individual permits and based on city laws. it doesn't have the ability to expand its scope beyond what is provided in city law. and that basically is the crux of it. there is something different between a decision to issue a kind of permit and a number of permits. and a decision to issue individual permits. and sfmta and the board of appeals is in discussions to deal with those permits. but under the charter, sfmta by adopt and regulations. and make it clear, in the full
panel of effective article 1100 of the transportation code, it was the rewriting of the scheme, the methology to make a decision of how many permits issued. and that's where it's clear that no right to appeal has been given to this body. the sfmta has written out of the process, and the controller's office and written out of the process. it has changed the process procedurings, and it's rewritten the rules. and has provided regulations that conflict with 1077 of the police code that means it's superseded. you may hear individual permits as long as consented. but it's up to the sfmta. you have lost the jurisdiction
of the resolution of 1111.5. >> may i respond to that? >> no. mr. gruberg, please. commissioner lazarus, you have further comments? >> well, i guess i should state that while i don't necessarily want to from a policy point of view go this direction. i see the logic in what our city attorney stated. and so would be inclined not to grant jurisdiction. >> have you changed your mind commissioner? >> no. >> just for the public's information. when we have a potential vote where the missing member of the
board can affect that decision we take it upon ourselves to continue the case. so that we can have a full complement of board members to vote on it. i am going to move to continue this case. madam director. what would be appropriate date? >> i think even though our calendar is very full, we should move to the next available hearing date. given the urgency expressed by the requestor. >> is that next week? >> no, november 7, we are not meeting next week. >> we are going to meet after election date? >> yes, sir. >> okay, and i hope everyone understands that's the rationale and sort of where the missing member can affect the final outcome. we allow that to occur. i will continue, the motion to
continue to november 7. >> okay, and that's to allow commissioner fung to participate in the vote. >> that's right. >> no additional briefing. >> no additional arguments unless she's got questions. >> okay, we have a motion from the vice president to continue this matter to november 7. and it's to allow our president, chris hwang to participate in the final vote. no additional briefings from the party. mr. gruberg or sfmta. on that motion, hurtado. >> aye. >> lazarus. >> aye. >> the vote is 3-0, the item is continued to november 7. >> thank you. >> should we take a minute
break? two minutes. >> the san francisco board of appeals. we are going to call a few items out of order. item 7, 12-085. the subject property is at 30 cambon drive. and this is a letter of determination below a medical cannabis dispensary could be a part. i understand that you want to request a continuation of this hearing. >> that is correct, i will matthew girardi, and at this time we would like to request the hearing continuance until the december 5 hearing. due to travel plans i am the attorney in los angeles. and the last flight available is
8:15. as such it would behoove us to continue the matter until december 5. if that appeases the board. >> that works for our calendar. >> do we need to ask for public comment? >> yes, we do. and the zoning administrator agreed to this in the break. any public comment? seeing none. if there si motion. >> move to continue this case to december 5. >> okay, if you can take the roll on that please. >> on that motion from the vice president to reschedule this matter. item 7, 12-085 to december 5. hurtado. >> aye. >> lazarus. aye.
>> the vote is 3-0, and this is rescheduled to december 5. >> the next item is item 5, 12-0111. this is for planning department approval. subject property is 2100 washington street. recommendation to the recreation & park department to erect a building. mrs. gallagher. >> you have seven minutes. >> i have information that i should address to the board. there is an ongoing consideration of document that i requested.
i have developed quite a reputation with rec & park department for asking for everything, including the kitchen sink. i have not received documents. at this point in time i do not have any, any daily inspection reports relevant to the work in the park since august 28. despite i have asked for it in writing repeatedly. and most recently i asked for it on october 15. here is my e-mail to the person i was told to address these requests to. there are additional things i have not received. i have asked for information since june. and i wrote explaining why i want the financials. there are a lot of questions related to this permit without understanding the context. i don't think that we can adequately address these concerns. one example there were limited reports provided to me yesterday in response to my earlier
requests. this is one of them. it's showing that all kinds of inspections were done related to the 477 permit. i bet those daily inspections reports will reflect those are things done related to this permit. because it didn't make sense otherwise. >> mrs. gallagher you want a continuance? >> i would like a continuance to have the documents i asked for. >> let's deal with this item, this issue first. anything else you want to add to the request for continuance? >> the other issue is that president hwang is on the record at my last request of a hearing on december 19. i asked for a prohibition against work to be in writing. and president hwang said it was better than in writing, it was on the record. i have brought five clips from
that hearing that directly involve president hwang on this point and given she's not here and of the issue and the presence of work done. and despite her statement that it would not be done. i feel without her being here, that issue won't be properly vetted. >> this is a request for continuance? >> on behalf of the recreation & parks department. i would say that we have provided all documents that exist in our possession made in request of shannon gallagher. shannon has submitted since the last hearing six requests for documents. two occurred in august. one in september.
and three requests in the last seven days.
we did not request that this hearing be moved up. we gave miss gallagher the full amount of time to prepare her brief and collect her information and why she is still requesting documents a week, ten days before the hearing, you know, i don't know. if she finds something new, you know, maybe she can come back for another request. but we're prepared to respond to her brief and with hope that the board will hear it today.
>> okay. commissioners, any comments on the request for continuance? >> i have two questions, maybe one for the attorney. when documents are requested, which i assume comes under basically the sunshine ordinance. is it appropriate or legal to ask for information in a format that may not be the way a department has prepared it? in other words, ask for a document that then perhaps by that definition does not exist? >> i think we have an obligation to share the documents that we do have in existence. if we have electronic copies and electronic copies